Filed 8/16/96

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HOMER W. TATE,
Plaintiff-Appellant,
v.
SHIRLEY S. CHATER, *
Commissioner, Social Security
Administration,

No. 95-5265
(D.C. No. 94-C-576-M)
(N.D. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT **

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S.
Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant Homer W. Tate appeals the district courts affirmance of the
decision by the Secretary of Health and Human Services denying his application
for social security disability benefits. Because the administrative law judge (ALJ)
failed to include all of claimants impairments in his hypothetical question to the
vocational expert, the Secretarys decision is not supported by substantial
evidence and must be reversed.
Claimant filed for benefits in September 1992, alleging an inability to work
after July 1988, due to injuries to his right leg and left ankle, and deficiencies in
his hearing and vision. In July 1989, claimant was involved in an automobile
accident that resulted in internal injuries and severe fractures to his right femur,
pelvis, jaw, and left ankle. He has undergone several surgeries for these injuries,
including an open reduction and fixation of his femur and ankle. As part of the
femur reduction, a plate and bone screws were inserted into claimants right leg.
Claimants left ankle was rebuilt, although his orthopedic surgeon characterized

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the prognosis for the ankle as poor, and opined that claimant would eventually
need an ankle fusion. R. II at 202.
In January 1990, claimants orthopedic surgeon opined that he could not
return to work for another three months. In March 1990, the orthopedist noted
that claimants left ankle had healed with irregularities, had a reduced range of
motion, and that the prognosis was guarded. He also noted claimants complaints
of right leg pain, and advised claimant to find lighter work than that performed
previously. Id. at 233. In May 1990, the orthopedist noted that claimant was
walking OK, and included the cryptic statement No light duty. Part time work
[with] brother. Id. at 232.
In November 1992, consulting physician David Krug noted that claimant
had restricted ankle movement, right leg pain from cold weather and walking, and
a limp favoring the right leg. He opined that claimant might have difficulty
walking on uneven surfaces without a cane, and indicated that claimant could only
walk two blocks without an assistive device. Id. at 272, 273.
The record shows also that claimant is deaf in his right ear, id. at 271, and
that he alleges reduced hearing in the left ear. Consulting physician Krug noted
that claimant kept his left ear turned toward him during their interview, and that
claimant could hear the physician speak but could not repeat anything. Id. at 271,
273. Claimants vision is also poor, with no visual acuity in one eye and
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reduced vision in the other. Id. at 271, 269 (treating physician reported light
perception only in Rt eye and approximately 15-20% loss of [visual acuity] in left
eye with best visual correction). It is undisputed that claimant has undergone
surgery for cataracts and glaucoma in both eyes, that he has no depth perception,
and that his color perception is limited. Id. at 173, 271.
At the hearing, the ALJ posed a hypothetical question to the vocational
expert, in which a hypothetical person could lift no more than 20 pounds, and
frequently lift or carry 10 pounds; occasionally climb, balance, or kneel; [is]
unable to read fine print or see detail at a distance; and [needs] to avoid
hazardous situations, such as unprotected heights, and dangerous machinery. Id.
at 64. The question did not mention any hearing loss, lack of depth or color
perception, or walking restrictions on uneven ground or for long distances. Based
on the vocational experts answer to this hypothetical question, the ALJ
concluded that there were jobs in the economy which claimant could perform. Id.
at 25. The Appeals Council denied review, making the ALJs decision the final
decision of the Secretary.
We review the Secretarys decision to determine whether the factual
findings are supported by substantial evidence and whether correct legal standards
were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994). Substantial evidence is such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion. Richardson

v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). We may neither reweigh the evidence nor substitute
our discretion for that of the Secretary. Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991).
Claimant argues that the Secretarys decision is not supported by
substantial evidence because the ALJ disregarded uncontradicted medical
evidence in formulating his hypothetical question to the vocational expert. We
agree. [T]estimony elicited by hypothetical questions that do not relate with
precision all of a claimants impairments cannot constitute substantial evidence to
support the Secretarys decision. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th
Cir. 1991)(quotation omitted). The hypothetical need only contain those
impairments borne out by the evidentiary record, however. See Evans v. Chater,
55 F.3d 530, 532 (10th Cir. 1995).
It is undisputed that claimant suffers from a hearing loss which should have
been included in the hypothetical. This omission was particularly significant
given the vocational experts later testimony that claimants hearing trouble
would impact some of the jobs he could perform. See R. II at 65; Evans, 55 F.3d
at 532. Claimants lack of depth perception and limited color perception were
also undisputed, and should have been placed before the vocational expert.
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Finally, the consultative physicians opinion that claimant was restricted in

his ability to walk on uneven ground and for long distances without an assistive
device was uncontradicted, and should have been included in the hypothetical
question. The ALJs reason for rejecting this opinion, because [t]he medical
record does not confirm a necessity for the continued use of a cane on uneven
surfaces or limitations on the distance the claimant could walk without a cane, R.
II at 24, ignores the fact that the physicians opinion was medical evidence in
itself. There is nothing in the record to contradict such an opinion, and, in fact,
the opinion is supported by the orthopedic surgeons conclusion that claimants
ankle had healed irregularly with a guarded prognosis. See id. at 233. For these
reasons, the case must be remanded for further proceedings.
The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED and the case is REMANDED for further proceedings.

Entered for the Court

Stephen H. Anderson
Circuit Judge

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